A , A A A A - Trinity College Dublin

LEGAL POSITIVISM, NATURAL LAW

AND THE CONSTITUTION

ORAN DOyLe*

The jurisprudential debate between legal positivism and Natural Law isentrenched. The strands of Natural Law thinking go back to the Greekphilosophers and St Thomas Aquinas. More recently, theorists such as RobertGeorge, Germaine Grisez and John Finnis have adapted and revitalised NaturalLaw thinking about law.1 Legal positivism is a more recent development. Itdeveloped in the seventeenth, eighteenth and nineteenth centuries as part of thephilosophies of Thomas Hobbes, Jeremy Bentham and John Austin. It wasrestated in the twentieth century by legal philosophers such as Hans Kelsen,HLA Hart and Joseph Raz.2 There are as many variations among the naturallawyers and among the legal positivists as there are between the natural lawyersand the legal positivists. Accordingly, it is difficult (and beyond the scope ofthis article) to provide an account of the differences between Natural Law andlegal positivism. As a brief generalisation, natural lawyers are more likely thanlegal positivists to be sympathetic to the following claims: any description oflaw cannot be neutral but must be guided by a sense of correct morality; thebest example of a legal system is a morally just legal system; an unjust law is(in some special sense) not a law. Despite the differences between them andamong them, these theorists are all primarily involved in a description oranalysis of what law is. Secondarily, they may be involved in a prescription ofwhat law ought to be and how it ought to be interpreted.

A different debate about the Natural Law has occurred within the Irish legalsystem, most obviously in the constitutional debate over the unenumeratedrights doctrine. For approximately 30 years, the Irish courts engaged in aprocess of enumerating constitutional rights, often by reference to Natural Lawtheories. At times, this debate has adopted the jurisprudential language ofNatural Law and legal positivism. In particular, it has been suggested that theIrish legal system is in some way inconsistent with legal positivism.

* Lecturer in law, Trinity College, Dublin. This paper was first presented at the Irish

Jurisprudence Society symposium on Constitutionalism and Legal Theory, held in NUI

Galway on 25 October 2008. It also formed the basis of discussion in the jurisprudence class

in Trinity College. I am grateful to those who commented in both fora.

1. See for instance Robert George, In Defense of Natural Law (Oxford University Press, 1999),

Germain Grisez, The Way of the Lord Jesus (Franciscan Press, 1984), and John Finnis, Natural

Law and Natural Rights (Oxford University Press, 1980).

2. See for instance, Hans Kelsen, The Pure Theory of Law (University of California Press, 1967),

HLA Hart, The Concept of Law (Oxford University Press, 1961) and Joseph Raz, The

Authority of Law: Essays on Law and Morality (Oxford University Press, 1979).

The purpose of this article is to argue that such a position is fundamentallymistaken, being based on a confused understanding of the claims made by legalpositivists and natural lawyers. In particular, three points of confusion affect thisdebate as conducted within Irish constitutional law. First, there is confusionbetween theoretical claims about what law is and doctrinal claims about what aparticular law says. It does not follow from the fact that a particular law (oreven legal system) asserts a Natural Law position that that law (or legal system)cannot be understood in a legal positivist manner. Second, there is confusionbetween the descriptive and prescriptive claims of legal positivists. Apart fromone relatively recent development, legal positivists have tended to confinethemselves to descriptive claims about what law is rather than makeprescriptive claims about what law ought to be. Third, there is an unwillingnessto consider the possibility that there might be good Natural Law reasons for alegal system not to make references to the Natural Law in its doctrines.

In this article, I shall first briefly review the contours of the unenumeratedrights doctrine, before outlining the most coherent version of the view that theIrish legal system is inconsistent with legal positivism. I shall then seek todisentangle the sources of confusion mentioned above with a view to advancingthe following propositions. There is nothing in the Irish Constitution which isinconsistent with legal positivism as generally understood. The Irish legalsystem can be explained by legal positivist accounts of law, notwithstanding thereferences to the Natural Law in the Irish Constitution. There is a strand ofnormative legal positivism with which the development of the unenumeratedrights doctrine was inconsistent. However, the existence of the unenumeratedrights doctrine can equally be seen as inconsistent with Natural Law theory.Ultimately, the unenumerated rights doctrine can perhaps be best understood asa judicial attempt to deal with the problem of unjust laws; however, there areseveral reasons to be concerned about the wisdom of that attempt.

THe UNeNUMeRATeD RIGHTS DOCTRINe

Article 40.3 of the Constitution provides as follows:

1° The State guarantees in its laws to respect, and, as far as practicable,by its laws to defend and vindicate the personal rights of the citizen. 2° The State shall, in particular, by its laws protect as best it may fromunjust attack and, in the case of injustice done, vindicate the life, person,good name, and property rights of every citizen.

In Ryan v Attorney General,3 Kenny J seized on the fact that Article 40.3.2°enumerates a number of specific rights that are protected, prefaced by thephrase “in particular,” to infer that there were other rights protected by Article

2009] Legal Positivism, Natural Law and the Constitution 207

3. [1965] IR 294.

40.3.1° that were not enumerated. This approach was approved by the SupremeCourt on appeal. Kenny J himself relied on the Christian and Democratic natureof the State (partly using a papal encyclical to identify some characteristics ofa Christian state) to identify a right to bodily integrity. However, he held thatthe fluoridation of the water supply did not breach Mrs Ryan’s right to bodilyintegrity. The courts have also relied on this Christian and Democratic approachto identify a right to travel4 and a right to privacy.5

The courts developed two other approaches to identify rights under theguise of Article 40.3.1°. Henchy J relied on the human personality approach,for instance in McGee v Attorney General holding unconstitutional the ban onthe importation and sale of contraceptives:

[T]he unspecified personal rights guaranteed by sub-s. 1 of s. 3 of Article40 are not confined to those specified in sub-s. 2 of that section. It is forthe Courts to decide in a particular case whether the right relied on comeswithin the constitutional guarantee. To do so, it must be shown that it is aright that inheres in the citizen in question by virtue of his humanpersonality. The lack of precision in this test is reduced when [Article40.3.1°] is read (as it must be) in the light of the Constitution as a wholeand, in particular, in the light of what the Constitution, expressly or bynecessary implication, deems to be fundamental to the personal standingof the individual in question in the context of the social order envisagedby the Constitution. The infinite variety in the relationships between thecitizen and his fellows and between the citizen and the State makes anexhaustive enumeration of the guaranteed rights difficult, if notimpossible.6

Henchy J also applied this approach (dissenting) in Norris v Attorney Generalto hold that Mr Norris had a right to privacy, which right precluded thecriminalisation of consensual sexual activity between men.7

The third approach for identifying new constitutional rights was the NaturalLaw approach, principally used by Walsh J. Again in McGee, he offered thefollowing account of why Natural Law rights were protected by theConstitution:

Articles 40, 41, 42 and 44 of the Constitution all fall within that sectionof the Constitution which is titled “Fundamental Rights.” Articles 41, 42and 43 emphatically reject the theory that there are no rights without laws,no rights contrary to the law and no rights anterior to the law. Theyindicate that justice is placed above the law and acknowledge that naturalrights, or human rights, are not created by law but that the Constitution

208 Dublin University Law Journal [Vol 31

4. State (M) v Attorney General [1979] IR 73.

5. Kennedy v Ireland [1987] IR 587.

6. [1974] IR 284, at 325.

7. [1984] IR 36.

confirms their existence and gives them protection. The individual hasnatural and human rights over which the State has no authority; and thefamily, as the natural primary and fundamental unit group of society, hasrights as such which the State cannot control. … Both in its preamble andin Article 6, the Constitution acknowledges God as the ultimate source ofall authority. The natural or human rights to which I have referred earlierin this judgment are part of what is generally called the natural law. Thereare many to argue that natural law may be regarded only as an ethicalconcept and as such is a re-affirmation of the ethical content of law in itsideal of justice. The natural law as a theological concept is the law of Godpromulgated by reason and is the ultimate governor of all the laws ofmen. In view of the acknowledgment of Christianity in the preamble andin view of the reference to God in Article 6 of the Constitution, it must beaccepted that the Constitution intended the natural human rights I havementioned as being in the latter category rather than simply an acknowl -edgment of the ethical content of law in its ideal of justice.8

Both Henchy J’s and Walsh J’s approaches can be seen as variants of NaturalLaw theory. Walsh J’s is in the traditional, Thomistic line of Natural Lawthought. Henchy J’s is in line with the more secular, enlightenment account ofNatural Law.

At times, the courts used Article 40.3.1° simply as a repository for rightsthat were textually implicit in other parts of the Constitution. This approach wasdoctrinally less interesting than the other three approaches and is not the focusof this article. Ultimately, the unenumerated rights doctrine ran aground. In reArticle 26 and Regulation of Information (Services Outside the State forTermination of Pregnancies) Bill 1995, the Supreme Court rejected thecontention that the people’s power to amend the Constitution was subject to theNatural Law, as interpreted by judges.9 Subsequently, in O’T v B, Keane Jcogently articulated several concerns with the unenumerated rights doctrine,which concerns appear to have since been adopted by a majority of theSupreme Court.10 Nevertheless, the unenumerated rights doctrine remains asignificant aspect of Irish constitutional law, if only for its legacy of cases. Morefundamentally, however, given the central importance of the doctrine inteaching Irish constitutional law, many people’s introduction to terms such as“legal positivist” and “Natural Law” occurs through the rather odd prism of theIrish constitutional debate. It is partly for this reason that it is important toreassess the terms of that debate. A confused use of the terms in the Irishconstitutional debate leads to a more general confusion about the nature of lawitself.


8. [1974] IR 284, at 310, 317–318.

9. [1995] 1 IR 1. For an analysis of this case broadly consistent with the argument advanced here,

see Oran Doyle, “Legal Validity: Reflections on the Irish Constitution” (2003) 25 DULJ 56.

10. [1998] 2 IR 321.

THe UNeNUMeRATeD RIGHTS DOCTRINe AND LeGAL POSITIVIST THeORy

In McGee v Attorney General, Walsh J commented that the Constitution rejectslegal positivism as a jurisprudential guide,11 apparently on the basis that theConstitution recognises the existence of rights other than those that areexplicitly mentioned in its text. Writing extra-judicially, Mr Justice Costellocomes close to making the same point:

It has more than once been judicially observed that it can clearly beinferred that the Constitution rejects legal positivism as a basis for theprotection of fundamental rights and suggests instead a theory of naturallaw from which those rights can be derived.12

These assertions must rest on an unstated understanding of what legalpositivism is. A detailed examination of Costello’s essay provides some cluesto that understanding.

Costello’s essay is a considered exploration of constitutional law and thejudicial role. There is a tension in the article between a Natural Law theory ofrights and an inherited english idea of the judicial function. Costello begins bymaking an important point about the limits of the judicial role:

In cases where this problem has been directly addressed it is clear that thecourts have been careful to ask, “What rights did the Constitution intendto protect by Article 40.3.1?” rather than the more general philosophicalquestion, “What are the rights of man?” This approach accords with thetraditional notion of the judicial function for, by adopting it, the judgeendeavours to avoid imposing his own political, moral or religious viewson the issues which are raised for adjudication and instead seeksassistance in answering the problems posed by referring to the text of theConstitution itself. It means that by agreeing that a right claimed by aplaintiff is a personal right within the meaning of the Article the court isdeciding that the right is one which can reasonably be implied from theprovisions of the Constitution, rather than one which in the opinion of thecourt the citizen should enjoy.13

Costello accepts that the general nature of constitutional provisions leaves a“very large area of judicial discretion” and notes that judges may be accused ofcovertly or unconsciously departing from this self-discipline. However, hesuggests that this approach demands a “reasoned explanation for a conclusion”


11. [1974] IR 284, at 318–319.

12. Declan Costello, “Natural Law, the Constitution and the Courts” in Lynch and Meenan eds,

Essays in Memory of Alexis Fitzgerald (The Incorporated Law Society of Ireland, 1987) 105,

at 109.

13. Costello, “Natural Law, the Constitution and the Courts,” note 12, at 107.

and “tends at least to minimise the element of personal predilection in thejudicial process.”

He then notes the different methods of enumerating rights under Article40.3.1°. Although he does not rule out methods such as the “Christian andDemocratic” approach, he places most emphasis on Thomistic Natural Law.Although not explicitly referenced, this is probably a response to DesmondClarke’s 1982 article pointing out the different forms of Natural Law reasoning.Clarke criticised the unenumerated rights doctrine partly on the basis that thecourts were unclear as to which Natural Law argument they were using.14

Costello responds to this criticism by arguing that it is clear that one variant ofNatural Law argumentation should be used. His first question is to ask whichNatural Law theory has been adopted by the Constitution:

An answer to the first question can reasonably be found in the Preamble.For if the Constitution is one which has been adopted for a Christianpeople it would be reasonable to conclude that the theory of law which ithas adopted and the philosophical basis for the fundamental rights whichit sought to protect should be in accord with the views of Christianphilosophy rather than those of Roman lawyers or eighteenth centuryrationalist thinkers. The classical exposition of natural law in the Christiantradition is that contained in the writings of Thomas Aquinas and histheory of law is obviously the most relevant for the purpose ofconsidering the role of natural law in the Irish Constitution.15

In a similar vein, Mr Justice Walsh himself argues (extra-judicially) that judgesmust give effect to the philosophical principles underlying the Constitution:

[T]he justice or otherwise of the expropriation of property or even theinterference with property without adequate or any compensation couldbe judged differently by persons holding different philosophies. Thus alaw enacted to give effect to such a purpose might in some jurisdictionshave to be implemented and applied strictly according to its terms. But ifby reason of constitutional provisions, such as those found in the IrishConstitution, which permit the courts to condemn such a law it is becausethe courts are permitted to and have the duty under the Constitution tojudge and condemn by extra-legal standards of justice. Thus each of ourjudges must work from a philosophical conviction which does not differfrom the philosophy underlying the Constitution.16


14. Desmond Clarke, “The Role of Natural Law in Irish Constitutional Law” (1982) 17 Irish

Jurist 187.

15. Costello, note 12, at 110.

16. Brian Walsh, “The Judicial Power, Justice and the Constitution of Ireland” in Curtin and

O’Keeffe eds, Constitutional Adjudication in European Community and National Law:

Essays for the Hon Mr Justice TF O’Higgins (Butterworths, 1992) 145, at 147. The

Walsh thus implies that judges in other legal systems might be required to applyunjust laws. For Walsh, it is unquestionably the Constitution’s references tojustice which legitimise the courts’ recourse to justice in opposition to law.

Costello in his article proceeds to note certain features of Aquinas’s NaturalLaw thinking that he considers most relevant to questions of Irish constitutionallaw. Law must be made by someone in authority and promulgated, but it mustbe directed to the common good. The will of the sovereign has the force of lawas long as it accords with reason. Because man is endowed with reason, he canpartake in the eternal Law. This is the Natural Law, nothing more than “a bodyof precepts established by reason:”

Firstly and basically, man in common with all created substances has anatural inclination to the preservation of his being; and reason,considering this natural inclination, dictates what means are necessary forthe preservation of human life. These dictates are part of the precepts ofthe Natural Law.17

However, Costello notes other aspects of the relationship between Natural Lawand positive law:

Reason shows that it is desirable that positive enactments should existwhich would, for example, clearly define the law of murder and thesanctions which are to be attached to it. The function of the law-maker inhuman society is to define and make explicit the natural law and to makeit effective. Human positive law must not go contrary to the natural law.If it does it is a “perversion” of law. It would follow then that the basicrights which are derived from the precepts of the natural law obtain theirvalidity from that law and not from human positive law, and that they aresuperior to it. Any human law which would deprive the human person ofthem would be a perversion.18

There are several interesting points within this account of the relationshipbetween Natural Law and positive law. First, Costello notes the role of positivelaw in making the Natural Law “explicit” and “effective.” However, he omitsto mention the role that positive law plays in regulating matters on which theNatural Law is silent. On many issues, the Natural Law quite simply hasnothing to say. Nevertheless, some Natural Law theorists, such as Finnis,consider that even in those situations the Natural Law requires that there besome co-ordination and regulation, a need that is met by the institutions of


subsequent paragraphs make clear that Walsh considered Thomistic Natural Law to be the

principles underlying the Constitution.


18. Ibid, at 112.

positive law.19 Costello would likely agree with this proposition if it were putto him.

Second, Costello observes that human positive law that goes contrary to theNatural Law is a perversion of law. He also suggests that the basic rights whichare derived from the precepts of the Natural Law obtain their validity from thatlaw, not from positive law. These rights are superior to positive law. Althoughhe does not fully flesh out the implications of this, he seems to consider that thenatural rights have a “validity” that allows them to resist – perhaps even at thelevel of positive law – acts of positive law that are contrary to them. Accordinglyjudges could disapply and citizens disregard any positive laws that breach thenatural law. In the Irish context, this is presumably achieved by judgesenforcing the natural rights through Article 40.3.1° against the perversions ofpositive law. How it should happen (if at all) in other legal systems is not at allclear. In contrast, Walsh does not consider that judges in other legal systemsnecessarily have the power to deal with unjust laws. As noted above, for Walshit is unquestionably the Constitution’s references to justice which legitimise thecourts’ recourse to justice in opposition to law. Costello, however, is equivocalon this point. In another article, Walsh comments that constitutional rightstraceable to Natural Law are not rights created or purported to be created by theConstitution: they are acknowledged to exist independently of positive law, andthe Constitution binds the State not merely to recognise them but enforcethem.20 Again for Walsh, whatever status Natural Law may have, it is the textof positive law (the Constitution) that makes it relevant within the legal system.Costello is more equivocal on this point.

Third, it is interesting that Costello specifies that it is the role of the “law-maker” to make the Natural Law explicit and effective. This raises the questionof whether judicial enforcement of natural rights through Article 40.3.1°amounts to law-making. It would seem to be a process of making the NaturalLaw explicit and effective. There is nothing necessarily wrong with judgeshaving a law-making role, but it is inconsistent with Costello’s earlierendorsement of the traditional judicial function.

Costello concludes his account of the relevance of Natural Law for Irishconstitutional interpretation in the following way:

There are three points to be made about this theory in the context of thecourts’ role in adjudicating in controversies concerning Article 40.3.1.Firstly, if indeed it is a correct construction of the Constitution that thistheory of law has been adopted by it then, having ascertained that this is


19. For instance, the Natural Law has nothing to say about whether people should drive their cars

on the left hand side or the right hand side of the road. However, it is important for the

Natural Law that one side of the road be stipulated by positive law as the appropriate side on

which to drive. The Natural Law requires some coordination of human activity, but is often

indifferent as to the precise content of that coordination.

20. Brian Walsh, “The Constitution and Constitutional Rights” in Frank Litton ed, The

Constitution of Ireland 1937–1987 (Institute of Public Administration, 1987) 86, at 89.

so, it is not the courts’ function to evaluate it. An individual judge may bedissatisfied by the proofs of the existence of God or he may be on the sideof those who hold that all natural law theories are vitiated by a fallacywhich purports (wrongfully, it is claimed) to derive norms of humanbehaviour from the facts of human nature, or, like Bentham, he maybelieve that “natural rights is simple nonsense; natural and imprescriptiblerights rhetorical nonsense-nonsense upon stilts.” But judges are lawyersnot philosophers and must, be they Benthamites or orthodox Thomists,take and apply the Constitution as they find it. If it can correctly beinferred that the Constitution has adopted a theory of law which derivesfundamental rights from natural law, it is not the function of judges todebate the merits of the theory.

Secondly, in pursuing an inquiry under Article 40.3.1 as to whether aright claimed by a plaintiff is a “personal” right which obtains theprotection of the Article, the courts are not required to consider theoreticalquestions as to the source of men’s rights or why fundamental rights aresuperior to positive law. These have been answered for them. Their task,as lawyers, is to consider whether, by reference to the human person andthe social and political order envisaged in the Constitution, it can be saidthat the right is one which is constitutionally acknowledged and protected.

Thirdly, the “personal” rights to which Article 40.3.1 refers may bemore numerous than those basic fundamental natural rights which thepractical reason derives from the precepts of the Natural Law. But theserights could not be inconsistent with “natural” rights, both being theproduct of reason reflecting on a human person with a nature andcharacteristics identical in both legal orders.21

In this concluding section, Costello reverts to the strong positive law basis fora natural rights doctrine within Irish constitutional law. It is the statements madeby Irish positive law that ground the authority of Natural Law within the Irishlegal system. This suggests that it would not necessarily be permissible orappropriate for a judge in another constitutional order to strike down positiveperversions of law as being in breach of natural rights. However, it seems thatunder Costello’s account of the Irish situation, Irish judges face no suchdilemma. Because of Article 40.3.1°, unjust laws are ipso facto unconsti -tutional. The human positive laws that are “perversions of law” cease to be lawin any sense (perverted or otherwise) by reason of the effective incorporationof the Natural Law by Article 40.3.

The picture thus painted of Irish law suggests an unusual legal systemwhere conflicts between law and justice do not arise. Unusually perspicacious,the framers of the Constitution understood and took to heart the Natural Lawproposition of lex iniusta non est lex, effectively providing that laws must be


21. Costello, note 12, at 112–113.

just in order to be constitutional and therefore legally valid. Walsh makes asimilar point:

The Constitution itself places the emphasis upon justice, not merely inrelation to the judges’ functions but in relation to the administration of theState itself, as is evidenced in Article 40. Therefore if there is a conflictbetween the law and justice the law must yield place to justice.22

It is perhaps for this reason that Walsh and Costello speak of legal positivismnot being a jurisprudential guide to the Irish Constitution. They view legalpositivism as a philosophy that subordinates justice to law. The Natural Lawposition allows for the incorporation of justice into law, thereby avoiding thissubordination; it is therefore morally desirable. In contrast, legal positivism (intheir view) denies such recourse to morality, subordinates justice to law, and istherefore morally undesirable. Walsh writes:

The concept of natural law and natural rights for many years wasovershadowed by the positivist legal philosophy, of which the archexponent was Jeremy Bentham. Bentham summed it up by saying “rightsare the fruit of the law and of the law alone. There are no rights withoutlaw, no rights contrary to the law, no rights anterior to the law.” The eageradoption of this philosophy in South Africa, to displace the Roman-Dutchnatural law heritage, has lent legal support to a regime of racist inequalitywhich natural law concepts would not have tolerated. The apotheosis ofthe positivist position came in Nazi Germany where, it is said, theGerman positivist philosophy of law delivered the German judiciary,bound hand and foot, into the toils of Nazism. In both South Africa andNazi Germany, positivism led to a mechanical approach to the judicialfunction, so that no law could be invoked to invalidate the barbaric actsundertaken in each of those countries. However, the experience of NaziGermany also proved to be the ultimate absurdity of positivism and led toits downfall.23

Walsh then characterises the post-War adoption of instruments such as theUnited Nations Charter and the Universal Declaration of Human Rights as arejection of positivism. This reflects an understanding of legal positivism as anormative position which can be accepted or rejected by instruments of positivelaw, be they international agreements or national constitutions. The Irish


22. Walsh, note 16, at 147.

23. Brian Walsh, note 20, at 92, citing Jeremy Bentham, Works Vol III, at 221. No sources are

cited to support Walsh’s other views on the ills of positivism. It is far from clear, however,

whether Nazi judges or South African judges were positivists. Conversely, allowing judges

to use the words “Natural Law” is no guarantee against theories which incorporate racial and

ethnic limitations into the concept of human nature.

Constitution was designed in such a way as to incorporate a positive lawguarantee of natural rights,24 thereby ensuring – in Walsh’s view – that thehorrors of Nazi Germany or Apartheid era South Africa would not come to pass.The principle that an unjust law is not a law gains expression within the positivelegal system itself. This, for Walsh, is an attractive position of legal morality,leaving no choice to the jurist in such a system but to apply the Natural Law.25

It is the antithesis of legal positivism, as he understands it. This view is sharedby Costello, commenting in a later article:

A judge may be a legal positivist and have no use for natural lawconcepts, but if the Constitution (as it does) explicitly recognises theexistence of rights anterior to positive law these jurisprudential viewsmust yield to the clear conclusions which are to be drawn from theconstruction of the constitutional text.26

It is clear from this comment that Costello regards legal positivism as anormative position which could be adopted in relation to either the design of aconstitutional system or – depending on the terms of that system – as a judicialattitude to interpretation within that system. In short, the term “legal positivism”is used in relation to particular doctrines in particular systems. Legal positivistdoctrines are, for both Costello and Walsh, those that reject the notion of rightsanterior to positive law. As the Irish Constitution explicitly accepts that thereare rights anterior to positive law, it is inconsistent with legal positivism. Thedifficulty, however, is that this is not how the term “legal positivism” isgenerally used and understood.


24. Writing in 1962, Costello observed, “There can be no doubt that a conscious and deliberate

attempt was made at the time the Irish Constitution was drafted to revitalize the concept of

the natural law and give it the sanction of positive law in the Constitution.” By concept of

natural law, Costello appears to have meant “a strong body of legal theory which declared

that an unjust law was no law and which refused to accept that the mere will of the sovereign

was law.” Declan Costello, “Book Review of Fundamental Rights in the Irish Law and

Constitution by JM Kelly” (1962) Studies 201, at 201, 202.

25. Walsh accepts that this application of the Natural Law by judges allows for a wide amount

of judicial discretion, but does not consider this to be problematic:

It has been objected that “justice” or “injustice” are vague criteria. The citizen has a

natural right not to be subject to injustice. It is difficult perhaps to define justice or

injustice in the abstract, but it is much less difficult to recognise it in the concrete and

that is what the courts are there for. In so far as this involves the individual judge (and

indeed the legislator) in exploring and expounding the collective conscience or concept

of justice, he or she must rely upon instinct or intuition, which, in short, means on his

own moral sense and his own intelligence. Walsh, note 20, at 106.

26. Declan Costello, “The Irish Judge as Law-Maker” in Curtin and O’Keeffe eds, Constitutional

Adjudication in European Community and National Law: Essays for the Hon Mr Justice TF

O’Higgins (Butterworths, 2002) 159, at 161.

LeGAL POSITIVISM AS A JURISPRUDeNTIAL GUIDe

There is nothing in Costello and Walsh’s account of the Irish legal system thatcannot be explained from the perspective of legal positivism. Writing in 1958(several years before the commencement of the unenumerated rights doctrineand nearly three decades before Costello’s analysis of that doctrine), HLA Hartsummed up the positivist position on the separation of law and morals in thefollowing way:

What both Bentham and Austin were anxious to assert were the followingtwo simple things: first, in the absence of an expressed constitutional orlegal provision, it could not follow from the mere fact that a rule violatedstandards of morality that it was not a rule of law; and, conversely, itcould not follow from the mere fact that a rule was morally desirable thatit was a rule of law.27

This is fully consistent with Costello’s account of the Irish constitutionalposition. Costello accepts (on the basis of Natural Law thinking) that law mustbe promulgated by a person in authority. Positive law must be positively made.However, Costello is equivocal on whether – for Irish lawyers – Natural Lawgains its positive authority from the positive provisions of the Irish legal orderor from its own status as a higher law. At times, he speaks of Natural Law rightsgaining their validity from Natural Law which is superior to positive law. If thisis the case, Natural Law is superior regardless of what positive law says. Atother times, however, he places heavy emphasis on the positive provisions ofthe Irish Constitution. If this is the case, Natural Law’s authority derives fromthe positive legal system itself. (This is also the approach taken by Walsh.)Three aspects of Costello’s article support this reading of his views: first, hisapparent endorsement of the traditional judicial role combined with hisassertion that the courts are careful to ask what rights does the Constitutionintend to protect rather than what rights does man have. Second, his repeatedreferences to the textual authorisation for the natural rights doctrine. Third, hisconclusion that – because judges are lawyers not philosophers – they mustaccept the natural rights doctrine “if indeed it is a correct construction of theConstitution that this theory of law has been adopted by it.”

If Costello believes (with Walsh) that the Irish courts’ references to NaturalLaw are necessarily authorised by the constitutional text, then he accepts oneof the most basic propositions of HLA Hart. The legal validity of normativepropositions does not necessarily depend on their moral content, although itmay do so – the provisions of a particular legal system may contingentlyestablish that the morality of normative propositions is relevant to their legalvalidity. If, on the other hand, Costello believes that the constitutional


27. HLA Hart, “Positivism and the Separation of Law and Morals” 71 Harvard Law Review 593,

at 599 (1958).

references to Natural Law are irrelevant and that all legal systems must importNatural Law thinking, then Costello is committed to a Natural Law theory oflaw that is inconsistent with legal positivism: positively valid rules lose theirvalidity where they conflict with the Natural Law, simply because Natural Lawis superior. even this reading does not pose difficulties for the aims of thisarticle, however, because this reading does not make any particular claim aboutthe Irish legal system. It purports to be a claim about all legal systems. Thecentral thesis of this article would still stand: there is nothing peculiar to theIrish legal system that counts against a legal positivist understanding of law.

Underlying this discussion is a general concern that Costello has misiden -tified his target when he speaks of legal positivism. For legal positivism aimsto describe and explain legal systems, not to provide directions as to thesubstantive content of any particular legal system. In the first edition of Conceptof Law Hart describes his book as an essay in descriptive sociology.28 In hisposthumously published postscript, he elaborates on this:

My account is descriptive in that it is morally neutral and has nojustificatory aims: it does not seek to justify or commend on moral orother grounds the forms and structures which appear in my generalaccount of law, though a clear understanding of these is, I think, animportant preliminary to any useful moral criticism of law.29

It is unlikely that Irish law is so unique that legal positivism would prove unableto explain it and yet remain as a plausible explanation of other legal systems.Costello’s misidentification lies in misunderstanding legal positivism as anormative claim about legal doctrines rather than a descriptive claim about legalsystems. This is a curious error as most legal positivists have emphaticallyasserted that they are concerned with describing law. To adopt the catch-phrase,in their legal positivism they are concerned with the law as it is rather than thelaw as it ought to be. Legal positivism is capable of describing the reality ofIrish law, including Irish law’s own conception of how it ought to be. Legalpositivism does not deny that there may be natural rights. It simply denies thatthose natural rights are of themselves a litmus test for the validity of law in alllegal systems. A particular legal system might positively make such naturalrights a litmus test of validity, but there need be no such test. Put another way,a system of rules that provides no moral criterion of validity may still be a legalsystem. This is the soft positivist position which HLA Hart came to endorse.

A hard positivist, such as Joseph Raz, must maintain either that a legalsystem which appears to make legal validity depend on compatibility withmoral criteria is not a legal system or (more plausibly) that the application ofthose moral criteria is not an application of law. The reason for this, in Raz’sview, is that the incorporation of moral criteria into the law is incompatible with


28. Hart, note 2, at vi.

29. Ibid, at 240. emphasis original.

the authoritative nature of law. The law is authoritative in that it providesexclusionary reasons for action – reasons which exclude the force of otherreasons. These reasons are presented as a mediation of the unrestricted reasonsthat might have applied before a legal determination was made. It is in thissense that law is authoritative, but that authority is undermined if the interpretedimport of moral criteria (such as justice or “free speech”) is considered also tobe law.30 Of necessity, any such interpretation was never provided as anauthoritative resolution of competing moral concerns.

Both the soft and the hard version of legal positivism are compatible withCostello’s view that Article 40.3 requires Irish judges to make reference toprinciples of morality and justice in deciding cases. As noted above, the onlyclaim of Costello that may be incompatible with a legal positivist account is hispossible claim that all immoral laws are invalid by reason of their immorality.On balance, it seems unlikely that Costello is making this claim. In any event,the claim is incompatible with legal positivism in general, as it asserts that thelegal validity of rules necessarily depends on compliance with correct morality.But it is not problematic for the thesis of this article, because it is not a claimthat derives from the Irish legal system but is instead a general (if ratherimprobable) claim about law.

This is not to argue that legal positivism offers the best account of the Irishlegal system. It may be that there are general defects in legal positivism whichundermine its account of all legal systems (including the Irish legal system).Rather, the argument is that there is nothing special about the Irish legal systemwhich renders legal positivism inapposite as a description of it. If legalpositivism provides a good account of law in general, it provides a goodaccount of the Irish legal system.

A BIOGRAPHICAL AND BIBLIOGRAPHICAL ASIDe

The main purpose of this Article is to identify and critique a commonly heldIrish view about legal positivism. I have focused on Walsh and Costello purelyas exemplars of this view and not out of any particular interest to trace thedevelopment of the legal thought of those two pre-eminent jurists. However,one curious point of intellectual history is why both Walsh and Costello in thelate 1980s and early 1990s continued to understand the term “legal positivism”in a manner that was so far removed from general usage of that term, at leastsince HLA Hart began to revitalise the term in the english speaking world inthe 1950s. A possible clue is found in an earlier article by Costello. Writing in1956, Costello lamented the corruption in Natural Law thinking that hadoccurred with the move from Thomistic to enlightenment conceptions of theNatural Law: man’s nature and relationship with God was replaced with man’s


30. See generally Joseph Raz, “Authority, Law and Morality” in Joseph Raz, Ethics in the Public

Domain: Essays in the Morality of Law and Politics (Oxford University Press, 1994), at 210.

place in the state of nature; the natural duties of man were replaced with thenatural rights of man.31 In this vein, he addressed the question of legalpositivism:

Twentieth century legal thinking not only reflects the false eighteenthcentury theories of natural law and natural rights, but also the nineteenthcentury’s rejection of natural law as a basis both for law and humanrights. The legal philosophy of the nineteenth century mirrored faithfullythe current adherence to scientific progress and the laws of science, toempirical reasoning as against a priori ideas. Austin taught that thescience of jurisprudence was “concerned with positive laws, or with lawsstrictly so called as considered without regard to their goodness or theirbadness.”32

It thus appears likely that Costello’s understanding of legal positivism drewlargely on the work of Austin, rather than on the work of HLA Hart. Austin tookan apparently strong line on the separation of law and morality:

The existence of law is one thing; its merit or demerit is another. Whetherit be or be not is one enquiry; whether it be or be not conformable to anassumed standard is a different enquiry. … This truth, when formallyannounced as an abstract proposition, is so simple and glaring that itseems idle to insist upon it. But simple and glaring as it is, whenenunciated in abstract expressions the enumeration of the instances inwhich it has been forgotten would fill a volume.

Sir William Blackstone, for example, says in his Commentaries thatthe laws of God are superior in obligation to all other laws; that no humanlaws should be suffered to contradict them; that human laws are of novalidity if contrary to them; and that all valid laws derive their force fromthat Divine original. [Austin considered and rejected several – in his view,unproblematic – readings of Blackstone before continuing.]

But the meaning of this passage of Blackstone, if it has a meaning,seems rather to be this: that no human law which conflicts with the Divinelaw is a law for a law without an obligation is a contradiction in terms. …Now, to say that human laws which conflict with the Divine law are notbinding, that is to say, are not laws, is to talk stark nonsense.33

Costello’s understanding of legal positivism may well have been gleanedfrom passages such as this. However, even Austin cannot be taken to commit -ting himself to the sort of doctrinal legal positivism with which Costello


31. Declan Costello, “The Natural Law and the Irish Constitution” (1956) Studies 403, at 403. I

am grateful to Donal Coffey for bringing this article and line of inquiry to my attention.

32. Ibid, at 404.

33. David Campbell and Philip Thomas eds, The Province of Jurisprudence Determined by John

Austin (Ashgate, 1998), at 132–133.

disagrees. First, Austin’s main target in this passage is Blackstone’s contentionthat an unjust law is not a law. As noted above, the better reading of Costello isthat he would take similar issue with Blackstone. Certainly, the Thomistictradition of Natural Law did not make an assertion about unjust laws in suchstark terms.34 Second, Austin was quite clearly not considering judicial reviewbased on a bill of rights.35 Accordingly, his conception of legal positivism didnot account for the sorts of situation which Costello addresses.

The work of Jeremy Bentham, to whom both Costello and Walsh refer, isanother point of reference. The fuller extract from Bentham is as follows:

Rights are, then, the fruits of the law, and of the law alone. There are norights without law—no rights contrary to the law—no rights anterior tothe law. Before the existence of laws there may be reasons for wishingthat there were laws—and doubtless such reasons cannot be wanting, andthose of the strongest kind;—but a reason for wishing that we possesseda right, does not constitute a right. To confound the existence of a reasonfor wishing that we possessed a right, with the existence of the right itself,is to confound the existence of a want with the means of relieving it. It isthe same as if one should say, everybody is subject to hunger, thereforeeverybody has something to eat.

There are no other than legal rights;—no natural rights—no rights ofman, anterior or superior to those created by the laws. The assertion ofsuch rights, absurd in logic, is pernicious in morals. A right without a lawis an effect without a cause. We may feign a law, in order to speak of thisfiction—in order to feign a right as having been created; but fiction is nottruth.

We may feign laws of nature—rights of nature, in order to show thenullity of real laws, as contrary to these imaginary rights; and it is withthis view that recourse is had to this fiction:—but the effect of thesenullities can only be null.36


34. See Finnis, note 1, at 363. Finnis notes that St Augustine in his early dialogue on Free Will

made one of his protagonists say, “a law that was unjust wouldn’t seem to be a law.”

However, Aquinas preferred to say that unjust laws were “more outrages than law”, “not law

but a corruption of law” and “not a law simpliciter but rather a sort of perversion of law.” To

the extent that Costello maintains that an unjust law is not a law, he is ironically far closer to

the english common law tradition than the continental Natural Law tradition.

35. Austin was writing in the British parliamentary context. even in the United States, although

Marbury v Madison 5 US (Cranch 1) 137 (1803) famously established the power of judicial

review, the power was not exercised by the US Supreme Court in favour of a plaintiff until

Dred Scott v Sandford 60 US 393 (1857). One would thus not expect legal theories of this

time to address specifically the sorts of issues that are raised by the judicial interpretation of

positively stipulated moral standards in order to strike down laws.

36. Jeremy Bentham, The Works of Jeremy Bentham Volume 3 (1843), at 395. http://files.

libertyfund.org/files/1922/Bentham_0872–03_eBk_v4.pdf (visited 28 July 2009). emphasis

original.

Again, however, it is questionable whether Bentham’s legal positivism isthe correct target for Walsh. For both Walsh and Bentham perceive a distinctionbetween the positive law and the normative principles that lie behind positivelaw. Their fundamental disagreement is rather over the content of thosenormative principles that lie behind the positive law. Walsh perceives there tobe principles of natural law (human rights) antecedent and superior to positivelaw. For him, therefore, there are rights without law. For Bentham, there is onlythe principle of utility – the greatest happiness of the greatest number. For him,therefore, rights only exist as a construct of positive law – they are not thenormative antecedent to law. But for Walsh and Bentham respectively neitherthe principles of Natural Law nor the principle of utility becomes ipso facto law.Just as Walsh accepts that some legal systems may not give effect to theories ofnatural law, so Bentham would presumably have considered that a legal systemwhich purported to incorporate natural rights actually created those rights aslegal rights, even to the extent of allowing judges strike down positivelyenacted laws by reference to those legal rights.37

In short, the earlier versions of legal positivism espoused by Austin andBentham, with which Costello and Walsh may have been more familiar, are notincompatible with the Irish Constitution either. The Irish jurists’ use of the term“legal positivism” remains unconnected with any general use of that term.

NORMATIVe LeGAL POSITIVISM

The main critique of the Walsh/Costello view that legal positivism is not ajurisprudential guide to the Irish Constitution is that it misunderstands whatlegal positivism is. Both Walsh and Costello treat legal positivism as a normativetheory about the sort of legal systems we ought to design and as to the sorts ofinterpretation which judges ought to give when confronted with constitutionalrights provisions. As it is most commonly used, however, the term “legalpositivism” has nothing to do with such issues. Rather, it is a descriptive termabout the nature of legal systems: legal systems are not necessarily just; avalidly posited law remains (in every sense) a law, even if it is unjust. However,there is another, more recently articulated, variant of legal positivism that iscloser to what Walsh and Costello appear to have had in mind.38

In outline, normative legal positivism sees value in the features of law thatlegal positivists purport to describe, most importantly the absence of anystipulation that laws must conform to moral criteria in order to be legally valid.In particular, normative legal positivists believe that law can better serve itsauthoritative function (noted by Raz, above) if it avoids reference to moral


37. Bentham was never required to consider such a system.

38. I am grateful to David Prendergast for bringing this variation of positivism to my attention.

His paper and subsequent discussion at the Irish Jurisprudence Society in November 2007

prompted this article.

criteria in tests for legal validity. Jeremy Waldron argues that it is in the natureof law that it may be immoral. However, given substantive moral disagreementin the political community, it is necessary to have a fixed, identifiable positionof the community even if that position may be immoral. This position requiresto be enforced even where it is unjust:

Hence, there is the need for a single, determinate community position onthe matter – one whose enforcement is consistent with the integrity andunivocality of justice. Certainly, justice is affronted in another way if theposition identified and enforced as that of the community … is morallywrong. But given the inevitable disagreement on [the] issue and given thesymmetry, for all practical purposes, of the rival positions on the matter… there is no political way in which the prospect of this substantiveaffront can be precluded. All we can do, politically, for the sake of theintegrity of justice is ensure that force is used to uphold one view and oneview only – a view that anyone may readily identify as that of thecommunity, whatever his substantive opinions on the matter. The integrityof justice, then, evokes the concept of positive law and the philosophicaldoctrine of legal positivism: law must be such that its content and validitycan be determined without reproducing the disagreements about rightsand justice that it is law’s function to supersede.39

Writing in this vein, Tom Campbell advocates “the prescriptive separationthesis.” This is the view that law and morals ought to be separate at the point ofapplication. He argues that legal rules ought to be recognisable by theirempirically identifiable sources and that the acceptable content of formallygood laws is such that they can be applied without reference to the moralopinions of the judiciary.40 The difficulty is not with laws adopting moralpositions (such as that intentional killing is wrong, for instance). Rather, thedifficulty lies in laws incorporating moral values which then require moralinterpretation by the law-applier in any particular case (such as a lawguaranteeing the right to life, for instance). In this latter case, the judge is calledon to give a moral interpretation; this undermines the purpose of law, whichwas to determine those moral issues itself, leaving judges with the more limitedtask of applying that determination.

On its own terms, normative positivism appears to be just as consistent withdictatorial as with democratic politics. Provided the dictator adopts laws whichdo not incorporate moral standards, normative positivism per se is not offended.Perhaps more realistically, a system of constitutional governance which allowsfor pre-enactment (but not post-enactment) judicial review would not appear tooffend normative positivism.41 In such a system, the judges’ moral assessment


39. Jeremy Waldron, “Kant’s Legal Positivism” 109 Harvard Law Review 1535, at 1540 (1996).

40. See Tom Campbell, The Legal Theory of Ethical Positivism (Dartmouth, 1996), at 69–73.

41. I am grateful to Aislinn Lucheroni for this point.

of a law would be completed prior to its enactment and application, therebyensuring that its application does not involve the resolution of moral questions.However, normative positivists tend to be committed to democratic theoriesand, in particular, to the notion that it is inappropriate to have unelected judgesmaking important decisions, based on moral criteria, about what legal positionspertain in the community. Concerns about legal certainty, therefore, tend to gohand-in-hand with concerns about democracy.

The Irish legal system is thus inconsistent with normative legal positivism:the unenumerated rights doctrine leaves open the possibility that all unjust rulescan be overturned once they are sought to be applied. The avoidance of aninjustice is considered more important than the general need for law to have andmaintain a determinate position that can be identified in a way that does not callfor moral judgment. Of course, this does not just undermine the certainty oflaws only when a particular law is overturned: it leaves open a standingpossibility that any law can be overturned. The test for overturning such a lawis “the Natural Law,” thereby directly engaging the type of moral disagreementthat it is, on Waldron’s view, the function of law to avoid. If legal positivism isequated with normative legal positivism, it is accurate to say that the IrishConstitution rejects legal positivism as a jurisprudential guide. Normativepositivism is a guide to the desirable content of a legal system. It emphasisescertainty and the need to avoid moral disagreement in rule identification aboveall else. (Moral disagreement in rule creation, as noted above, is not a problem.)The Irish Constitution assuredly does not adopt this approach. As with all billsof rights, moral guarantees such as equality, respect for family and propertyrights invite moral disagreement in some form back into the identification oflaw. But the unenumerated rights doctrine went far further because it did noteven identify any specific moral criteria that required to be interpreted.

A normative legal positivist would not have designed the Constitution inthis way. The fundamental rights provisions – in particular, the open-endedincorporation of morality by Article 40.3.1° – would have been avoided.However, it is less clear what relevance normative positivism has for theinterpreters of law. Once the design of the Constitution introduces the need formoral interpretation, restrictive interpretations are just as offensive to thenormative positivist as expansive interpretations. Against this, it could beargued that the courts should systematically adopt restrictive interpretations inthe expectation that this will – over time – reduce the need for moralinterpretations at all. As a strong example of this, the decision in Ryan vAttorney General that there were unenumerated rights was perhaps akin to adesign decision, opening up the need for many moral interpretations in thefuture. On this analysis, the normative legal positivist would support the viewtaken by Keane J in O’T v B. Normative legal positivism was thus at odds withthe unenumerated rights doctrine but may have been adopted as a guide for Irishconstitutional law by a newer generation of judges.


THe NATURAL LAW AND THe NeeD FOR CeRTAINTy

The unenumerated rights doctrine was inconsistent with a normative positivistprescription for a legal system. It allowed the content of law to be identified bymeans of judicial interpretation of an unlimited set of moral concepts. Theirony, however, is that the incorporation of Natural Law into the positive law inthis way may also be incompatible with a Natural Law prescription for a legalsystem. This is because Natural Law values positive legal certainty in much thesame way and for much the same reasons as normative positivism does.Costello at times comes close to recognising this possibility:

Reason shows that it is desirable that positive enactments should existwhich would, for example, clearly define the law of murder and thesanctions which are to be attached to it. The function of the law-maker inhuman society is to define and make explicit the natural law.42

However, Costello then asserts that positive law “must not go contrary tonatural law.” Any such human law is “a perversion.” As noted above, Costellomay be arguing for a conception of law which allows immoral positive laws tobe corrected. This undermines certainty. The question is whether Natural Law’sdesire for positive law to be certain extends to allowing for the positive validityof immoral laws. Put another way, to what extent is a natural lawyer preparedto allow moral concerns feed back into positive law. Finnis has addressed thisissue:

[L]egal thought does not banish altogether those considerations, touchingthe common good, which in general are scarcely more closely definablethan the basic values and principles [of the Natural Law], but which inparticular circumstances can lead reasonable men to agree on a course ofaction not provided for by the existing legal rules or the network ofcontractual or other obligatory arrangements subsisting under those rules.Nevertheless … the legal system does not allow an unrestricted feedbackof such “value” or “policy” considerations from the justificatory level ofstraightforward practical reasonableness back into the level of practice.Instead, the legal system systematically restricts such feedback byestablishing institutions, such as courts, arbitrators and legislatures, andthen requiring that any shifting of the obligations imposed by existingrules and subsisting arrangements only by those institutions. Moreover,the institutions are themselves placed under legal rules (differingaccording to the nature and functions of the institutions) which make itobligatory that only in certain circumstances, and according to definedprocedures and within certain limits, may they admit, accept, or act upon



the “extra-legal” policies, or upon the legally indeterminate (or not fullydeterminate, e.g. justificatory rather than strictly obligatory) principles.43

The unenumerated rights doctrine can be seen as a method of allowing moralconcerns seep back into the application of law, militating against possibly unjustdecisions that may have been taken by legislatures in enacting the law. It isdoubtful whether the procedures of the Irish courts for moral feedback arerestrictive enough to satisfy Finnis. If this is correct, the Irish constitutionalNatural Law doctrine is – ironically – problematic from a Natural Lawperspective. The Natural Law values legal certainty as a means for ensuring aframework in which individuals can coordinate their activities and authenticallyflourish. Legal certainty is best secured by ensuring that the law does notrequire further moral interpretation in order to ascertain its meaning. Thus whenconsidering what legal provisions we ought to have and how judges ought tointerpret those provisions, the Natural Law itself may require that it not beincorporated in an open-ended way into positive law. The positive law – whenenacted – ought to adopt positions consistent with the Natural Law, but thepositive law ought not allow judges to strike down properly enacted positionssimply because they conflict with the Natural Law.

CONCLUSION

There is a commonly held view that the Irish legal system (because of itsconstitutionally protected rights, in particular Article 40.3.1°) is inconsistentwith legal positivism. This view only holds up if one understands legalpositivism not in its most predominant sense (as a description of legal systems)but in its more peripheral sense (as normative directions in relation to consti -tutional design and interpretation). However, when one considers normativequestions relating to constitutional design and interpretation, it also becomesplain that an authentic Natural Law position may reject the proposition thatjudges should be empowered to strike down democratically enacted laws byreference to the Natural Law.

The attraction of the unenumerated rights doctrine was that it allowedjudges to deal with the problems of unjust laws. It required them to incorporatean extra-constitutional standard of justice and strike down unjust laws, therebyremoving their status as laws, even their status as “positive laws.” There seemto be two types of reason as to why one might consider such an approachattractive. First, one might consider that ex post facto decisions are likely to bebetter than anticipated decisions. Second, one might consider that judges havea better sense of justice than elected representatives. These two types of reasonmay combine in different ways. The difficulty is that the first reason militates


43. Finnis, note 1, at 311, 312.

against having any legal system at all while the second reason, when stated sobaldly, is difficult to accept. Apart from the concerns over legal certainty anddemocracy (shared by normative legal positivism and the Natural Law), theIrish doctrine of unenumerated rights placed an inordinate amount of faith inthe capacity of judges – more than legislators – to know what justice truly is.The facility to utter the words “Natural Law” does not guarantee that what issaid will be consistent with the Natural Law. even if objective standards ofjustice do exist, there is no particular reason to think that judges – more thanany other group of people – will know what they are. It is unsurprising that thecourts appear to have abandoned the unenumerated rights doctrine.


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